The decision of the Responsible Authority is set aside. Planning permit D/297/2005 is issued for the development of three double storey dwellings at 99 St. David Street, Thornbury, generally in accordance with endorsed plans and subject to the following conditions:

1. Before the commencement of the development, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must be generally in accordance with the amended plans submitted with the application (identified as Dwg No: TP04, TP05, TP06, TP07, TP08, TP12, TP13, drawn May 05, prepared by Victor Anderson Architect, received By Council on 12 May 2005) but modified to show:

a)

Without expanding on the footprint of the development, setback of Unit 3 abutting No. 101 St. David Street a minimum of 6 metres from St. David Street graduating to a minimum of 7.5 metres for Unit 1, with an average of these two for Unit 2;

b)

Modifications to the ground and first floor walls of Unit 1 opposite the habitable room window (proposed meals and first floor bathroom) at 97 St. David Street to meet Standard B20 of Clause 55.04-4.

c)

Retention of the fig tree at the northwest corner of the site.

d)

Modifications to vehicular access for carports and car spaces at the rear to either meet Standard B16 or the satisfaction of the Responsible Authority.

e)

A comprehensive schedule of construction materials, external finishes and colours, including colour samples (provide two colour copies).

f)

A landscape Plan in accordance with Condition No. 5 of this permit. When approved, the plans will be endorsed and form part of this permit.

2. The layout of the development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

* The development does not start within two (2) years from the date of this Permit; or

* The development is not completed within four (4) years of the date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.

4. Prior to the construction of any building or the carrying out of any works authorised by this permit, a development levy must be paid to Darebin City Council. The amount of the development levy for each charge unit must be calculated in accordance with Schedule 1 to the Development Contribution Plan Overlay.

5. Before buildings and works start, a detailed Landscape Plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority. When the Landscape Plan is approved, it will be endorsed and will then form part of this Permit. The Landscape Plan must be prepared by a suitably qualified person and must incorporate:

(a) details of all existing trees to be retained and all existing trees to be removed, including overhanging trees on adjoining properties. The genus, species, height and spread of all trees must be specified;

(b) a planting schedule of proposed vegetation detailing the botanical name, common name, size at maturity and quantities of all plants;

(c) details of all surfaces including lawns, mulched garden beds and hard paving (such as asphalt, concrete, brick or gravel);

(d) street trees within the nature strip/s adjacent to the property;

(e) all constructed items including retaining walls, letter boxes, garbage bin receptacles, outdoor furniture, lighting, clotheslines etc;

(f) edge treatment between grass (lawn) and garden beds;

(g) an outline of the approved building/s including any basement, the location of entry doors, windows, gates and fences. An outline of buildings on adjoining land, including the location of windows and doors which face the subject site must also be shown;

(h) the location of both existing and proposed overhead and underground services. Conflicts of such services with the existing and proposed planting must be avoided;

(i) clear graphics identifying trees (deciduous and evergreen), shrubs, groundcovers and climbers; and

The species of all proposed plants selected must be to the satisfaction of the Responsible Authority.

6. The landscaping as shown on the endorsed Landscape Plan must be completed to the satisfaction of the Responsible Authority before the development is occupied and/or the use starts or at such later date as is approved by the Responsible Authority in writing.

No later than seven (7) days after the completion of the landscaping, the permit holder must advise Council, in writing, that the landscaping has been completed.

7. The landscaping as shown on the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the endorsed Landscape Plan to the satisfaction of the Responsible Authority.

8. All existing vegetation shown on the endorsed plan(s) as to be retained must be suitably marked before any development (including demolition) commences on the land and that vegetation must not be removed without the written consent of the Responsible Authority.

9. Floor levels shown on the endorsed plans must be confirmed. The confirmation of the ground floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 1994. This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible Authority no later than 7 days from the date of the sub-floor inspection. The upper floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the Responsible Authority.

10.Before the dwellings are occupied, an automatic external lighting system capable of illuminating the entry to each unit, access to each garage and car parking space and all pedestrian walkways must be provided on the land to the satisfaction of the Responsible Authority.

The external lighting must be designed, baffled and/or located to ensure that no loss of amenity is caused to adjoining and nearby land, to the satisfaction of the Responsible Authority.

11.The land must be drained to the satisfaction of the Responsible Authority.

12.With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.

13.No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

14.Boundary walls facing adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.

15.All dwellings sharing dividing walls must be constructed to limit noise transmission in accordance with Part F(5) of the Building Code of Australia.

16.Before occupation of the development, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:

(b) properly formed to such levels that they can be used in accordance with the plans;

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.

17.Before the development is occupied vehicular crossing(s) must be constructed to align with approved driveways to the satisfaction of the Responsible Authority. All redundant crossing(s) or crossing opening(s) must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.

- Any failure to comply with the conditions of this permit may result in action being taken to have an Enforcement Order made against some or all persons having an interest in the land and may result in legal action or the cancellation of this permit by the Victorian Civil and Administrative Tribunal.

- Nothing in the grant of this permit should be construed as granting any permission other than planning permission for the purpose described. It is the duty of the permit holder to acquaint themselves, and comply, with all other relevant legal obligations (including any obligation in relation to restrictive covenants and easements affecting the site) and to obtain other required permits, consents or approvals.

- The amendments specified in Condition 1 of this Permit and any additional modifications which are "necessary or consequential" are those that will be assessed by Council when plans are lodged to satisfy that condition. Any "necessary or consequential" amendments, in addition to those required by this condition, should be specifically brought to the attention of Council for assessment.

If any other modifications are proposed, application must also be made for their approval under Section 62(3) and/or Section 73 of the Planning and Environment Act 1987. They can only be approved once the required and consequential changes have been approved and the plans endorsed. It is possible to approve such modifications without notice to other parties, but they must be of limited scope. Modifications of a more significant nature may require a new permit application.

- This Planning Permit represents the Planning approval for the use and/or development of the land. This Planning Permit does not represent the approval of other departments of Darebin City Council or other statutory authorities. Such approvals may be required and may be assessed on different criteria to that adopted for the approval of this Planning Permit.

- Please note the Development Contribution Plan levy will be invoiced separately.

Mr. David Song, Town Planning Consultant, Aspect Town Planners. He called Victor Anderson, Architect, to explain the design of the proposal.

Mr. John Klarica, Calibre Planning Pty Ltd. appeared on behalf of the City of Darebin

1 This is an application brought by the permit applicant against Council's refusal to grant a permit for the development of three double storey attached dwellings at 99 St. David Street, Thornbury. The grounds of refusal relate to the proposal being detrimental to the existing and preferred neighbourhood character because of inadequate setbacks, dominant scale, insufficient articulation to the upper storeys, unsympathetic form and design details; detrimental impact on solar access to north facing window of existing dwelling; and poor on-site amenity for the dwellings.

2 At the commencement of the hearing, it was brought to the Tribunal's attention that Ms. Pearl Tilley is not a party to the proceeding. Mrs. Tilley was not an original objector and the statement of grounds she submitted to the Tribunal was not forwarded to the other parties. She has not formally requested to become a party.

3 Upon her request to be joined as party, Mr. Song objected on the basis that his client would be disadvantaged. By not being an objector and not having served with her statement of grounds, his client was not aware of her concerns, particularly regarding her concern for traffic in the laneway, an issue not raised by any party before. Mr. Klarica confirmed that the traffic issue mentioned in Ms. Tilley's statement of grounds is a new issue, although her other concerns are similar to other objectors'. Council has no objection to joining Ms. Tilley as party.

4 Considering that Ms. Tilley was not an original objector and she raised a new issue, I determined not to formally join her as a party to the proceeding but prepared to hear from her.

5 Mr. Song submitted that the statement of grounds submitted by Meredith Stephenson should also be struck out. I indicated that as Ms. Stephenson, also not an original objector, has not formally requested to be joined as party or attended the hearing, she has no standing in the proceeding.

6 Mr. Song called Mr. Victor Anderson, Architect of the project, to explain the design of the proposal. Mr. Klarica submitted that he should not be afforded the status of an expert witness, as no witness statement has been previously circulated. Mr. Song assured the parties that Mr. Anderson's role is limited to explaining the design and not justifying it. As a result, the order of submissions was altered so that Mr. Anderson was called before Council's submission.

7 Mr. Anderson explained the design brief from his client: three 3-bedroom dwellings and a particular modern design concept.

8 The review site is located on the west side of St. David Street between Collins and Flinders Streets, Thornbury. It is regular in shape, with a frontage of 17.83 metres, a depth of 36.27 metres, and a site area of 646.69 sq m. It is developed with a single storey double fronted weatherboard dwelling with mock masonry cladding. A 3-metre laneway runs along the rear of the site between Collins and Flinders Street.

9 Abutting the site to the north at No. 101 St. David Street is a block of two storey walk-up flats. It is set 6 metres from St. David Street. To the south is a single storey weatherboard house at 97 St. David Street on a similarly sized lot. Opposite the site on the east side of St. David Street are two rows of single storey single fronted attached dwellings probably developed in the 1970's or early 1980's.

10 The proposal is to redevelop the site for three double storeys attached dwellings all facing St. David Street. Each dwelling is provided with an open plan living quarter at the rear and one bedroom on the ground floor at the front, with two further bedrooms on the first floor, most with en-suites. Two car spaces are provided for each dwelling, one under cover and the second car space open. The car spaces for Unit 3 are in tandem arrangement in order to retain a mature fig tree at the rear as recommended by Council officer. Access to car parking is from the rear laneway.

11 The development is set 5.5 metres from St. David Street and constructed to parts of the north and south boundaries. The design of the development is modern, with the first floor recessed from the front and from the northern and southern ground floor footprints. The design uses flat roofs, large windows, and parapet walls.

12 The review site is in the Residential 1 Zone of the Darebin Planning Scheme ("the Scheme") under which a permit is required to develop more than one dwelling on a lot. The provisions of Clause 55 apply.

13 It is affected by the Development Contributions Overlay Schedule 1, under which a contribution is payable depending on the area the site is located and the type of development.

14 Other relevant provisions and policies of the Scheme are Clauses 11, 12, 14, 15.12, 16.02, 21.02-6, 21.03, 21.04, 21.05-2 (Housing), 21.05-3 (Urban Design), 22.04 (Urban Character Policy), and 65. I note that Council's MSS has been recently revised on 22 December 2005.

15 In reaching this decision to set aside Council's decision to refuse the application, I have reviewed the submissions, heard Mr. Anderson's design approach, inspected the site and reviewed the Scheme. I arrived at the conclusion that the outstanding issues identified in Council's grounds of refusal are not fatal, and the shortcomings can be overcome by permit conditions. The modifications sought are achievable according to the architect.

16 The fact that the site is well located for medium density development and the Scheme's encouragement for diversity and additional housing stock is not disputed. The two issues of this review are the design response to the context of the site and the design policy of the Scheme, and the amenity impact on the north facing habitable room window of the house at 97 St. David Street. Council also raised other internal amenity and car parking access issues which are again resolvable.

17 Council's opposition to the proposal is that the design fails to respect the neighbourhood character of the area and being inconsistent with the design guidelines under its Urban Character Study, a document called up by Clause 22.04.

18 In the Council's Urban Character Study, the site is located in the C2 Precinct. The character statement for the precinct is "the area's valued character includes the mixture of housing styles, in wide streets on a hilltop location". The valued character of the precinct is described as:

In general Victorian and Edwardian dwellings are being renovated and extended, indicating that these buildings are valued. New houses and 1960s medium density development indicates the larger site sizes that can accommodate such development are valued.

The area's valued character, typified by a mixture of building styles, is to be retained and enhanced. This means:

• Designing new dwellings that are neutral in the streetscape or respect the predominant form in the immediate streetscape.

• Ensuring new dwellings use appropriate materials and accord with the predominant height and setback of nearby buildings.

• Keeping front fences low.

20 Against such a policy context, Council's argument is that the design has not taken proper regard of the character of the neighbourhood. The predominant building form in the area is generally single storey Victorian to Interwar dwellings, with typical pitched roofs, eaves, protruding room with a gabled of hipped roof and verandah. The two storey walk-up flats to the immediate north are an anomaly. The proposal has strong reference to the box-like form of the walk-up flat. The flat roof form is not reflective of the pitched roof forms of the area. Contemporary architecture using grey render and silver grey balconies are not consistent with the face brick and weatherboard construction of buildings in the area. The proposed two-storey scale is not reflective of the prevalent scale of development in the area. The balconies are prominent and are a foreign element in the street. The proposed setback of 5.5 metres is not consistent with the setbacks of adjoining buildings: 6 metres for the walk-up flats and 9 metres for the house at 97 St. David Street. The first floor balconies facing the street protrudes forward of the building line. There is a lack of landscaping opportunity throughout the site.

21 Against these, Mr. Song noted the diversity of styles and design of dwellings in the immediate area: older style walk-up flats and modern style unit development. He argued that the proposed front setback, although less than the immediately adjoining properties, is consistent with the prevailing setbacks in this section of St. David Street (referring to Nos. 95 and 93 which have less setback than 97 and 101). Car parking is located at the rear and not visible from St. David Street. Landscaping opportunities still exist within the front setback area. The terrace style formation is a legitimate design as it is a more efficient use of the site than tandem arrangement. The dwellings are designed as three separate dwellings with their own parcel of land, entrances and no common property. The front façade is well articulated. The proposed flat roof form is not alien to the area, as demonstrated by the photographs of recent flat roof developments in the immediate area. The two-storey scale is an appropriate transition between the two storey walk-up flats to the north and the single storey dwellings to the south.

22 My inspection of the site and surrounding area confirms the mixture of style, scale and form of development in St. David Street, particularly in the street block between Collins and Flinders Street. This contrast sharply with the streetscape of nearby Flinders and Mansfield Streets, which have been developed with consistent single and double fronted single storey period homes.

23 Given the mixture of scale and building style of buildings in this part of St. David Street, and the dominance of the walk-up flats at 101 St. David Street, the proposed two storey height and massing, with the first floor recessed from the ground floor and good articulated façade treatment (by balconies, screen over windows, fenestration), side boundary setbacks, and separation of buildings between Units 1 and 2 from Unit 3, car parking located at the rear and totally not visible from the front, represent a streetscape presentation to St. David Street that is consistent with the guidelines for Precinct C2, except for the matter of front setback. Before I address the issue of front setback, I disagree with Council's view that the design is 'box' shaped and hence not acceptable.

24 The guidelines seek to avoid "'Two storey box' shaped dwellings with unarticulated wall surfaces". The proposed recessing of the first floor with a mixture of balconies, verandah and window fenestration provide good articulation. It is not a sheer two-storey 'box'. The modern design of the development does not lend itself to a pitched or hipped roof profile. To do so would increase the height of the building, adding to the dominance of the development against the single storey scale of buildings to the south and east.

25 The main problem I have with the design is the inadequate setback of from St. David Street. The walk-up flats at 101 St. David Street are set 6 metres from the street and the house at 97 is set at 9 metres. Mr. Song argued that the remaining two houses in this block further south have less than 9 metres setback. Even if these properties have less than 9 metre setbacks, their setbacks do not form the prevailing setback for this street block, being 2 out of a total of 5 properties. And, they are not immediately abutting the review site. The proposed 5.5 metres setback is not consistent with the recommendation of Standard B6 and cannot meet the design guidelines of Clause 55.03-1. I can see no justification for the proposed 5.5 metres setback.

26 Council submitted that the minimum setback should be 6 metres, aligning with the walk-up flats at 101 St. David Street to the north, and graduated to a minimum of 7.5 metres at Unit 1. The setback of Unit 2 should be the average between the two. Mr Anderson advised that he could achieve this setback without pushing the building envelope towards the rear.

27 I accept that this compromise would reduce the dominance of the development and is an acceptable outcome for the site. These setbacks would be required by means of a permit condition.

28 Another neighbourhood character issue is the interface of scale and building mass with adjoining properties. The proposed two-storey scale against the taller two storey walk-up flats to the north at No. 101 St. David Street is appropriate. The recessed first floor from the ground floor facing No. 97 St. David Street is also acceptable. There is no building massing abutting the 'backyard' space of No. 97 St. David Street because of the building mass pushed to the front. The rear of the site is developed for secluded private open space and open car parking structure.

29 One last design issue is the clerestory window for Unit 1 above the roof level, a structure that is above the two storey height. This structure sits above the roof and can probably be visible when viewed from an angle. I accept that the size of this structure is not excessive but provides natural light for the walkway, stairs and ground floor meals area of this unit.

30 This is the impact of the proposal on the solar access of a habitable room window on the northern elevation of the house at No. 97 St. David Street. The problem is the southern two-storey wall of Unit 1 facing this window. This room is a bedroom. It has no other window. The other north facing windows facing the development is a bathroom and kitchen, with the kitchen having an alternative source of light in another window.

31 Although the application received no objection from the owner or occupier of No. 97 St. David Street, it does not mean the amenity of this dwelling should not be addressed. The design should be modified to meet the setback required by Standard B20. Mr. Anderson indicated that this is achievable. A permit condition will be imposed.

32 One is internal overlooking between the proposed dwellings from first floor windows and balconies. However, I understand that they meet Standard B23 of Clause 55.04-7, mindful that the degree of internal overlooking tolerated is more relaxed than overlooking into existing open space or windows.

33 Council was also concerned with overlooking from the first floor balcony in 101 St. David Street. That is existing overlooking. Future residents of the development will be aware of this existing condition. To avoid overlooking from this existing condition such as having blank walls or screening structures facing this balcony, there is the risk of losing valuable northern aspect and solar access.

34 A last area of concern is the workability of vehicular manoeuvring for the car spaces for the southern most unit. The dimensions of access width do not appear to accord with the standard of ResCode, given the limited width of the laneway at 3 metre, the lack of widths of the carports and car spaces, and their lack of setback from the laneway. I would require the layout of the proposed car parking of all the units to meet the access dimensions required by Standard 16 or the satisfaction of Council's engineers. The current layout suggests that this is a relatively easy modification to achieve. For example, the carports and car spaces can be combined by removing the intervening columns, or they can be further recessed into the land.

35 There are some design issues with the development which are not fatal. I have been comforted by the design architect's view that the inadequate front setback and potential access width for car parking can be accommodated in the design. A permit can be issued subject to these requirements and the undertaking to retain the mature fig tree at the rear.

36 Based on the above reasons, Council's decision to refuse is set aside a permit to issue subject to the conditions stated in this order.